Part II

Quiz


When determining Equitable and Reasonable Utilisation, do factors relevant to socio-economic development always take priority over environmental considerations?

Yes – Incorrect

When determining what is Equitable and Reasonable Utilisation of an international watercourse, factors relevant to socio-economic development do not necessarily take priority. Rather, such factors are part of a multitude of factors listed in the UN Watercourses Convention (as well as other relevant factors not listed) that must be balanced in assessing what is Equitable and Reasonable Utilisation.

This principle, as codified under Article 5(1) of the Convention, aims to reconcile conflicting interests across international borders, so as to “provide the maximum benefit to each State from the uses of the waters with the minimum detriment to each” (ILA 1966 Helsinki Rules on the Uses of the Waters of International Rivers – See Fact Sheet #3).  Several terms apply: “sustainable use” reflects the need to balance economic, social and environmental values in the use of natural resources and to take into account the carrying capacity of international watercourses. “Optimum utilisation” means the most economically feasible and, if possible, the most efficient use. Therefore, a range of factors apply.

Since the principle of equitable and reasonable utilisation is rather general and flexible and the use of the watercourse is not based on the notion of equity, the concept demands the weighing and balancing of the competing (reasonable) interests of states; taking into account all relevant factors and circumstances. Most uses are not static hence changing scenarios with changing natural conditions can trigger a need to reconsider the relevant factors in each case. Article 6 of the Convention provides an indicative list of the key factors and circumstances to be taken into account when determining what constitutes an equitable and reasonable use.

Art 6(1) of the Convention states that ‘Utilisation of an international watercourse in an equitable and reasonable manner within the meaning of Article 5 requires taking into account all relevant factors and circumstances, including:

  1. Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character;
  2. The social and economic needs of the watercourse states concerned;
  3. The population dependent on the watercourse in each watercourse state;
  4. The effects of the use or uses of the watercourses in one watercourse state on other watercourse states;
  5. Existing and potential uses of the watercourse;
  6. Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect;
  7. The availability of alternatives, of comparable value, to a particular planned or existing use’.

Factors within other provisions of the Convention which are also relevant to determining the Equitable and Reasonable Utilisation of an international watercourse, include, but are not limited to:

For further discussion on the factors relevant to determining Equitable and Reasonable Utilisation, see Fact Sheet #4.

No – Correct

When determining what is Equitable and Reasonable Utilisation of an international watercourse, factors relevant to socio-economic development do not necessarily take priority. Rather, such factors are part of a multitude of factors listed in the UN Watercourses Convention (as well as other relevant factors not listed) that must be balanced in assessing what is Equitable and Reasonable Utilisation.

Since the principle of equitable and reasonable utilisation is rather general and flexible and the use of the watercourse is not based on the notion of equity, the concept demands the weighing and balancing of the competing (reasonable) interests of states; taking into account all relevant factors and circumstances. Most uses are not static hence changing scenarios with changing natural conditions can trigger a need to reconsider the relevant factors in each case. Article 6 of the Convention provides an indicative list of the key factors and circumstances to be taken into account when determining what constitutes an equitable and reasonable use. Under Art 6(1)(b), one of these factors is: ‘The social and economic needs of the watercourse States concerned‘.

Factors within other provisions of the Convention which are also relevant to determining the Equitable and Reasonable Utilisation of an international watercourse, include, but are not limited to:

For further discussion on the factors relevant to determining Equitable and Reasonable Utilisation, see Fact Sheet #4.

Does the UN Watercourses Convention prioritise the Rule of No Significant Harm over the principle of Equitable and Reasonable Utilisation?

Yes – Incorrect

Whilst the relationship between the Rule of No Significant Harm and the principle of Equitable and Reasonable Utilisation in international water law continues to be the source of academic debate, the UN Watercourses Convention is generally recognised as reflecting customary law by prioritising the principle of Equitable and Reasonable Utilisation.

The rule of no significant harm and the principle of equitable and reasonable utilisation are the cornerstones of international water law and thus codified within the Un Watercourses Convention. When developing the text of the UN Watercourses Convention there was lengthy discussion and debate on which substantive principle should take priority – that of equitable and reasonable utilisation or the no significant harm. Upstream states did not tend to support the prioritisation of no significant harm rule, because they feared it might potentially lead to a curtailment of future upstream developments. Conversely, most downstream states did not favour the primacy of the principle of equitable and reasonable utilisation due to a perception that it allowed scope for harm to occur from such developments with impacts downstream. Although the text that was eventually agreed upon by States appears to strike a balance between these two principles, it is still a contentious issue.

The relationship between these two principles within the text of the Convention is dictated by Article 7(2) which stipulates that any State causing harm to another must, take all appropriate measures, having due regard to the provisions of Article 5 and Article 6 to eliminate or mitigate such harm ()”. Article 5 provides that States must utilise their waters in an equitable and reasonable manner, and Article 6 sets out a non-exhaustive list of factors that should be taken into account in determining what this constitutes (see Fact Sheet #4).

Based on these provisions of the UN Watercourses Convention, a State must always give “due regard” to the principle of equitable and reasonable utilisation whenever significant harm occurs. However, there is no reciprocal obligation of “due regard” to the principle of no significant harm when States are determining if a use or uses are equitable and reasonable. This crucial distinction is what has led many legal scholars to conclude that the duty not to cause significant harm is thus a secondary obligation to the primary principle of equitable and reasonable utilisation.

For further discussion on the Convention’s application to regional agreements, see Fact Sheet #4 and Fact Sheet #5.

No – Correct

Whilst the relationship between the Rule of No Significant Harm and the principle of Equitable and Reasonable Utilisation in international water law continues to be the source of academic debate, the UN Watercourses Convention is generally recognised as prioritising the principle of Equitable and Reasonable Utilisation.

The relationship between these two principles within the text of the Convention is dictated by Article 7(2) which stipulates that any State causing harm to another must, take all appropriate measures, having due regard to the provisions of Article 5 and Article 6 to eliminate or mitigate such harm ()”. Article 5 provides that states must utilise their waters in an equitable and reasonable manner, and Article 6 sets out a non-exhaustive list of factors that should be taken into account in determining what this constitutes (see Fact Sheet #4).

Based on these provisions of the UN Watercourses Convention, a State must always give “due regard” to the principle of equitable and reasonable utilisation whenever significant harm occurs. However, there is no reciprocal obligation of “due regard” to the principle of no significant harm when states are determining if a use or uses are equitable and reasonable. This crucial distinction is what has led many legal scholars to conclude that the duty not to cause significant harm is thus a secondary obligation to the primary principle of equitable and reasonable utilisation.

For further discussion on the Convention’s application to regional agreements, see Fact Sheet #4 and Fact Sheet #5.

Must States prove that actual significant harm occurred in order to establish a breach of the rule of No Significant Harm (Art 7 of the UN Watercourses Convention)?

Yes – Incorrect

The duty not to cause significant harm contained in Article 7 of the UN Watercourses Convention does not necessarily require that States prove actual harm occurred, rather it may be enough to prove that reasonable steps were not taken to prevent such harm occurring.

Importantly, the duty not to cause significant harmis a due diligence obligation of prevention, rather than an absolute prohibition on transboundary harm. Hence, a state’s compliance with Article 7 is not dependent solely on harm being caused, but rather determined by a country’s reasonable conduct in terms of preventative behaviour to avoid the harm in question. This was confirmed by the International Court of Justice judgment in the Pulp Mills on the River Uruguay case, which included the need to conduct an EIA (see Fact Sheet #6) as part of this duty. However the practical components within an EIA were not defined by the ICJ so this is left up to States to determine. Therefore, despite no explicit requirement to conduct EIAs under the Convention, transboundary EIA is generally seen as an integral element of the due diligence requirement of the Article 7 duty to take appropriate measures not to cause significant harm (and Article 12 on notification concerning planned measures with possible adverse effects).

Furthermore, under Article 7 countries are required to take only those measures of prevention deemed appropriate according, for example, to a State’s resource capabilities. The type of harm countries must avoid causing is qualified by the term significant – defined as the real impairment of a use, established by objective evidence. For harm to be qualified as significant it must not be trivial in nature but it need not rise to the level of being substantial; this is to be determined on a case by case basis. The “significant” threshold excludes mere inconveniences or minor disturbances that States are expected to tolerate, in conformity with the legal rule of “good neighbourliness”.

For discussion on the duty not to cause significant harm under the UN Watercourses Convention, see Fact Sheet #6.

No – Correct

The duty not to cause significant harm contained in Article 7 of the UN Watercourses Convention does not necessarily require that States prove actual harm occurred, rather it may be enough to prove that reasonable steps were not taken to prevent such harm occurring.

Importantly, the duty “not to cause significant harm” is a due diligence obligation of prevention, rather than an absolute prohibition on transboundary harm. Hence, a state’s compliance with Article 7 is not dependent solely on harm being caused, but rather determined by a country’s reasonable conduct in terms of preventative behaviour to avoid the harm in question. This was confirmed by the International Court of Justice judgment in the Pulp Mills on the River Uruguay case, which included the need to conduct an EIA (see Fact Sheet #6) as part of this duty.

For discussion on the duty not to cause significant harm under the UN Watercourses Convention, see Fact Sheet #6.

When determining the Equitable and Reasonable Utilisation of an international watercourse, do existing uses of the water resources automatically take priority over planned/future uses?

Yes – Incorrect

When determining what is Equitable and Reasonable Utilisation of an international watercourse, existing uses do not automatically take priority over planned/future uses. Rather, both existing and future uses are part of a multitude of factors listed in the UN Watercourses Convention (as well as other relevant factors not listed) that must be balanced in assessing what is Equitable and Reasonable Utilisation.

Within the provisions of the UN Watercourses Convention, Article 10 specifically addresses the relationship between different kinds of uses, whereby Art 10(1) provides that‘In the absence of agreement or custom to the contrary, no use of an international watercourse enjoys inherent priority over other uses’. Hence, no use, existing or planned, of an international watercourses is automatically prioritised over another.

Furthermore, under Art 10(2) ‘In the event of a conflict between uses of an international watercourse, it shall be resolved with reference to articles 5 to 7, with special regard being given to the requirements of vital human needs’. Articles 5 to 7 concern the cornerstone provisions of the UN Watercourses Convention – the principle of equitable and reasonable utilisation and the no significant harm rule. This principle of equitable and reasonable utilisation, as codified under Article 5(1) of the Convention, aims to reconcile conflicting interests across international borders. Article 6 of the Convention provides an indicative list of the key factors and circumstances to be taken into account when determining what constitutes an equitable and reasonable use. Finally, Article 7 of the Convention relates to the rule of no significant harm. All of these provisions are thus used to balance and resolve the competing interests of existing and planned/future uses.

For further discussion on Equitable and Reasonable Utilisation and related provisions, see Fact Sheet #4 and Fact Sheet #5.

No – Correct

When determining what is Equitable and Reasonable Utilisation of an international watercourse, existing uses do not automatically take priority over planned/future uses. Rather, both existing and future uses are part of a multitude of factors listed in the UN Watercourses Convention (as well as other relevant factors not listed) that must be balanced in assessing what is Equitable and Reasonable Utilisation.

Under the UN Watercourses Convention, no use, existing or planned, of an international watercourses is automatically prioritised over another. Article 10 of the UN Watercourses Convention specifically addresses the relationship between different kinds of uses, whereby Art 10(1) provides that‘In the absence of agreement or custom to the contrary, no use of an international watercourse enjoys inherent priority over other uses’.

Furthermore, under Art 10(2) ‘In the event of a conflict between uses of an international watercourse, it shall be resolved with reference to articles 5 to 7, with special regard being given to the requirements of vital human needs’. Articles 5 to 7 concern the cornerstone provisions of the UN Watercourses Convention – the principle of equitable and reasonable utilisation and the no significant harm rule – which are thus used to balance and resolve the competing interests of existing and planned/future uses.

For further discussion on Equitable and Reasonable Utilisation and related provisions, see Fact Sheet #4 and Fact Sheet #5.

When determining Equitable and Reasonable Utilisation, do ‘vital human needs’ take precedence over all other factors?

Yes – Incorrect

In balancing the competing interests of States utilising an international watercourse, ‘vital human needs’ are to be given special consideration, but do not take automatic precedence over all other factors.

Article 10 of the UN Watercourses Convention specifically addresses the relationship between different kinds of uses, whereby Art 10(2) specifies that ‘[i]n the event of a conflict between uses of an international watercourse, it shall be resolved with reference to articles 5 to 7, with special regard being given to the requirements of vital human needs. Articles 5 to 7 concern the cornerstone provisions of the UN Watercourses Convention – the principle of equitable and reasonable utilisation and the no significant harm rule – which are thus used to balance and resolve the competing interests of States in utilising an international watercourse.

The minimum individual water requirements for human survival are considered “vital human needs” which must always be protected under the principle of “equitable and reasonable utilisation“. Therefore, special attention is to be paid to providing sufficient water to sustain human life, including both drinking water and the water required for the production of food in order to prevent starvation, when considering other relevant factors. However, in balancing this provision with the consideration of “all relevant factors” under Article 5 and Article 6 of the Convention, the need to account for “the availability of an alternative” water supply within Article 6 may consequently limit the application of “vital human needs” under Article 10 where domestic water supplies are also available in close proximity to an international watercourse.

Ultimately, Art 10(1) of the Convention provides that – ‘In the absence of agreement or custom to the contrary, no use of an international watercourse enjoys inherent priority over other uses’. Hence, under the UN Watercourses Convention, no factor is automatically prioritised over another.

For further discussion on the difference in scope between these terms, see Fact Sheet #1 and Fact Sheet #2.

No – Correct

In balancing the competing interests of States utilising an international watercourse, ‘vital human needs’ are to be given special consideration, but do not take automatic precedence over all other factors.

Article 10 of the UN Watercourses Convention specifically addresses the relationship between different kinds of uses, whereby Art 10(2) specifies that ‘[i]n the event of a conflict between uses of an international watercourse, it shall be resolved with reference to articles 5 to 7, with special regard being given to the requirements of vital human needs. The minimum individual water requirements for human survival are considered “vital human needs” which must always be protected under the principle of “equitable and reasonable utilisation“. Therefore, special attention is to be paid to providing sufficient water to sustain human life, including both drinking water and the water required for the production of food in order to prevent starvation, when considering other relevant factors.

However, in balancing this provision with the consideration of “all relevant factors” under Article 5 and Article 6 of the Convention, the need to account for “the availability of an alternative” water supply within Article 6 may consequently limit the application of “vital human needs” under Article 10 where domestic water supplies are also available in close proximity to an international watercourse.

Ultimately, Art 10(1) of the Convention provides that – ‘In the absence of agreement or custom to the contrary, no use of an international watercourse enjoys inherent priority over other uses’. Hence, under the UN Watercourses Convention, no factor is automatically prioritised over another.

For further discussion on the difference in scope between these terms, see Fact Sheet #1 and Fact Sheet #2.

 

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